Accepting Sosa's Invitation: Did Congress Expand the Subject Matter Jurisdiction of the Alien Tort Statute in the Military Commissions Act?

Morison, Samuel T., Georgetown Journal of International Law

TABLE OF CONTENTS

I. INTRODUCTION
II. THE SOSA STANDARD
   A. Judicial Discretion in the Shadow of Congressional
      Oversight
   B. War Crimes Litigation Under the ATS
III. THE LAW OF PIRACY AND THE LIMITS OF CONGRESS'S
     PRESCRIPTIVE AUTHORITY
     A. The Ambiguous Legal Status of Piracy
     B. The Jonathan Robbins Affair
     C. The Supreme Court's Piracy Jurisprudence
        1. United States v. Palmer
        2. United States v. Klintock
        3. United States v. Holmes
IV. STATUTORY INCORPORATION AND THE COMMON LAW OF WAR
    A. Incorporating Piracy by Express Reference to International
       Law
    B. The Legal Status of the Military Commission
    C. Ex Parte Quirin
V. CONGRESS OCCUPIES THE FIELD
    A. Hamdan v. Rumsfeld
    B. Promulgation of the Military Commissions Act
    C. Through the Looking Glass
VI. CONCLUSION

I. INTRODUCTION

The law of unintended consequences has been usefully defined as "what happens when a simple system tries to regulate a complex system." (1) This occurs, not infrequently, when legislators--who operate "with limited information, ... short time horizons, low feedback, and poor and misaligned incentives--attempt to regulate a complex, evolving social system." (2) Sociologist Robert Merton is apparently credited with coining the phrase, though certainly not the concept which it describes. In addition to simple ignorance and error, Merton attributed the phenomenon largely to the "imperious immediacy of interest," by which he meant those "instances where the actor's paramount concern with the foreseen immediate consequences excludes the consideration of further or other consequences of the same act." (3)

The subject of this Article is a rather dramatic example of the presumably unintended consequences of Congress's zeal to institutionalize the practice of subjecting foreign nationals accused of terrorism-related offenses to trial by military commission for alleged "war crimes," rather than the prosaic but time-tested method of referring them for prosecution in an Article III court or a court-martial. (4) In 2006, in order to ease the transition to this new permanent wartime framework, Congress enacted the Military Commissions Act (MCA), (5) which, for the first time in U.S. history, purported to codify the entire corpus of criminal violations against the laws and customs of war.

While most of the offenses codified in the MCA are not controversial, several appear to lack any grounding in the customary law of war, including terrorism (broadly defined) and providing material support for terrorism. (6) Importantly, the MCA also criminalizes the inchoate offenses of conspiring with or soliciting another person to commit any of the substantive offenses delineated therein. (7) In this way, the MCA substantially lowers the obstacles for penalizing non-state actors as war criminals, which previously had been confined within relatively narrow but well-established boundaries.

While it is perhaps emotionally satisfying to brand a terrorism suspect an "alien enemy," rather than merely a "criminal defendant," if the Supreme Court ultimately upholds the constitutionality of the MCA as it stands, the decision will come with a considerable systemic cost. This result follows for a remarkably simple reason, which seems to have largely escaped notice in the complex debate concerning the domestic status of customary international law. Under the Alien Tort Statute (ATS), the federal district courts "have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." In its landmark decision in Sosa v. Alvarez-Machain, (9) the Supreme Court authorized the district courts to entertain a limited category of federal common law causes of action under the ATS, provided the norm in question satisfies a demanding test of specificity and widespread acceptance in the amorphous body of rules that emerges from the common norms of state practice and opinio juris.

Scholars and litigants have assumed, reasonably enough, that the lower courts will be constrained to hew closely to Sosa's guidance when asked to recognize novel claims in human rights litigation under the ATS. But this assumption overlooks the fact that these constraints only apply to the judicial creation of federal common law tort remedies in the absence of legislative guidance. Unless a rule of decision is grounded in a constitutional imperative, it is axiomatic that Congress retains the authority to change virtually any rule of federal common law. (10) When Congress codifies a tort remedy for violations of an international norm--as it did in the Torture Victim Protection Act (TVPA) (11)--a court's interpretive task devolves into a straightforward exercise in the construction of the statutory terms. (12) Similarly, when Congress expressly incorporates the substantive content of international crimes into the federal code, as it did with respect to grave breaches of the Geneva Conventions and genocide, (13) then it has arguably "defined" those particular norms for ATS purposes, even though those statutes do not in terms provide for a civil cause of action.

This Article proceeds as follows. Part I sets the stage by establishing that Sosa's rationale is premised entirely on the assumption that the ATS evinces a settled congressional intention to empower the district courts to create common law tort remedies for violations of certain international norms, which are incorporated by reference into domestic law. This suggests that the concerns about judicial overreaching are misplaced when Congress defines the relevant norms by statute. In either case, Sosa presumes that Congress has the last word, provided it acts within the scope of its constitutional authority. Additionally, Sosa presumes that customary international law is a unified body of normative principles. As such, there is a single standard for determining the substantive content of customary international law, regardless of the remedy being sought in a particular legal proceeding. If this is correct, it suggests that the Sosa standard controls the construction of criminal statutes that likewise incorporate by reference customary international norms into domestic law.

Part II turns to the legal status of piracy, which formed a significant part of the Court's docket in the early decades of the nineteenth century. At first blush, the relevance of these cases might seem to be little more than a matter of antiquarian interest, but the Court's piracy jurisprudence is actually central to our inquiry for at least two reasons. First, Sosa treats piracy as the paradigmatic example of a customary international norm that possesses the requisite clarity and acceptance in state practice to ground the assertion of subject matter jurisdiction under the ATS. As such, any contemporary international offense that rises to this level will necessarily satisfy Sosa's demanding test.

In addition to serving as an exemplar for an actionable violation of international law, the piracy cases are relevant because, unlike Sosa, they directly address the vexing question of the constitutional limits on Congress's prescriptive authority to "define and punish ... Offences against the Law of Nations." (14) As we shall see, when Congress seeks to codify international norms and then regulate the conduct of persons having no nexus to the United States, the existing body of customary international law serves as an objective constraint on Congress's prescriptive authority. Although this case law has been examined elsewhere, previous accounts have failed to address the import of the law of war, which is lurking in the background of the Court's analysis. The upshot is that Congress is no more permitted to unilaterally alter the law of war than it can any other branch of customary international law pursuant to its "define and punish" authority.

Finally, Parts III and IV turn directly to the codification of the jus in bello, the branch of customary international law that governs the conduct of participants in an armed conflict. Taken together, these sections establish that for most of U.S. history, Congress wisely made no effort to prescribe in fine detail the content of the law of war. Instead, it allowed the law to develop in a common law fashion under the supervision of the military justice establishment that was primarily responsible for enforcing it. Indeed, the methodological template for the adjudication of war crimes under domestic military law had been the ATS and the federal piracy statute.

As noted above, this traditional practice came to an abrupt end in 2006, when Congress passed the MCA in response to the Supreme Court's decision in Hamdan, (15) which invalidated the first post-9/11 iteration of military commissions designed to try aliens accused of terrorism-related offenses. In contrast to historical practice, the MCA occupies the field by codifying the entire corpus of war crimes for purposes of American military practice. Accordingly, if the MCA is uncritically accepted as a valid exercise of Congress's prescriptive authority under the Define and Punish Clause, the logic of Sosa teaches that non-state actors, including corporations, may be held directly liable under the ATS for violating the norms delineated in the MCA, including providing, or conspiring to provide, material support for terrorism. (16)

II. THE SOSA STANDARD

A. Judicial Discretion in the Shadow of Congressional Oversight

The status of customary international law as a species of federal common law remains a hotly contested issue in the legal academy. (17) In the wake of Sosa, commentators have been equally divided on the import of the decision, with each camp arguing that the Court definitively resolved the debate in its favor. (18) Yet it seems to me that neither position is quite right. Sosa arguably elides …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Accepting Sosa's Invitation: Did Congress Expand the Subject Matter Jurisdiction of the Alien Tort Statute in the Military Commissions Act?. Contributors: Morison, Samuel T. - Author. Journal title: Georgetown Journal of International Law. Volume: 43. Issue: 4 Publication date: Summer 2012. Page number: 1097+. © 2008 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.